to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartas, (m) it is enacted, that no common pleas be thenceforth holden in the exchequer contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The surmise of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file *a bill against another upon a bare suggestion that he is the king's ac[*46] comptant; but whether he is so or not is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes: in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first fruits, and annual tenths. But the chancery of late years obtained a large share in this business. An appeal from the equity side of this court lies immediately to the house of peers; but from the common law side, in pursuance of the statute 31 Edw. III, c. 12, a writ of error must be first brought into the court of exchequer chamber. And from the determination there had, there lies, in the dernier resort, a writ of error to the house of lords. (14) VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellarius; who, Sir Edward Čoke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction.(n) (15) But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner; and, therefore, *when [*47] seals came in use, he had always the custody of the king's great seal. So that the office of chancellor, or lord keeper, (16) (whose authority by statute 5 Eliz. c. 18, is declared to be exactly the same), is with us at this day created by the mere delivery of the king's great seal into his custody: (0) whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior in point of precedency to every temporal lord. (p) _He is a privy counsellor by his office, (q) and, according to Lord Chancellor Ellesmere, (r) prolocutor of the house of lords by pre (n) 4 Inst. 88. (m) 28 Edw. I, c. 4. (0) Lamb. Archeion. 56. 1 Roll. Abr. 385. (r) Of the office of lord chancellor, edit, 1651. (14) The appeal is now to the judges of the king's bench and common pleas in the exchequer chamber, and from their judgment to the house of lords. (15) [See also Gibb. Decl. and Fall, 2, 99, and 1 Camp. Lives of the Chancellors, 2, as to the various derivations ascribed to the name.] (16) [King Henry V had two great seals, one of gold, which he delivered to the bishop of Durham, and made him lord chancellor; another of silver, which he delivered to the bishop of London to keep; and historians often confound chancellors and keepers; 1 Harr. Ch. 68, note; 4 Inst. 88; but, at this day there being but one great seal, there cannot be both a chancellor and a lord keeper of the great seal at one time, because both are but one office, as is declared by the statute 5 Eliz. (4 Inst. 88), and the taking away the seal determines the office. 1 Sid. 338.] scription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic (for none else were then capable of an office so conversant in writings), and presiding over the royal chapel, (s) he became keeper of the king's conscience; visitor, in right of the king, of all hospitals and colleges of the king's foundation; and patron of all the king's livings under the value of twenty marks (t) per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics; and has the general superintendence of all charitable uses in the kingdom. And all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity. The ordinary legal court is much more ancient than the court of equity. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king's letters patent, when made against law, or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject's right. (u) On proof of which, as the king can never be supposed intentionally to do any wrong, the law questions not, [*48] but he will immediately redress the injury; and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party. (v) It might likewise hold plea (by scire facias) of partitions of land in coparcenery, (w) and of dower, (x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king, and claimed by a stranger against the grantee of the crown; (y) and of executions on statutes, or recognizances in nature thereof, by the statute 23 Hen. VIII, c. 6. (z) But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury but must deliver the record propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon. (a)(17) And when judgment is given in chancery upon demurrer or the like, a writ of error in nature of an appeal lies out of this ordinary court into the court of king's bench: (b) though so little is usually done on the common law side of the court, that I have met with no traces of any writ of error (c) being actually brought, since the fourteenth year of Queen Elizabeth, A. D. 1572. In this ordinary, or legal, court is also kept the officina justitiæ: out of which all original writs that pass under the great seal, all commissions of charitable (8) Madox. hist. of exch. 42. (t) 38 Edw. III. 3 F. N. B. 35, though Hobart (214) extends this value to twenty pounds. (v) 4 Inst. 80. (u) 4 Rep. 54. (w) Co. Litt. 171. F. N. B. 62. (z) 2 Roll. Abr. 469. (b) Year-book, 18 Edward III, 25. 17 Ass. 21. 29 Ass. 47. Dyer, 315. 1 Roll. Rep. 287. 4 Inst. 80. (c) The opinion of Lord Keeper North, in 1682 (1 Vern. 131; 1 Equ. Cas. abr. 129), that no such writ of error lay, and that an injunction might issue against it, seems not to have been well considered. (17) [It is important to confine this observation (which is not always done) to the common law side of the court of chancery. Sitting as a judge of common law and trying causes according to the rules of the common law, the lord chancellor cannot decide by himself a disputed fact, and has no power of issuing process to the sheriff or other officer for summoning a jury. But on the equity side of the court, where the jurisdiction of the lord chancellor is placed entirely on other grounds than those of the common law. he is equally competent to decide on disputed facts as on disputed law; and it is matter of discretion only when he either orders or permits the parties to submit the trial of such fact to the cognizance of a jury. For the manner in which this is done, see post, 452. According to the later precedents when a record comes into the king's bench from chancery, the chancellor does not deliver it propria manu, but sends it by the clerk of the petty bag. 1 Eq. Ca. Abr. 128.] Under the recent statute 25 and 26 Vic. c. 42, courts of equity are required to determine questions of law in cases where formerly it was the practice to refer them to the courts of law, and they may now summon juries for the determination of questions of fact in certain cases. Statute 21 and 27 Vic. c. 27. uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have ex debito justitiæ, any writ that his occasions *may call for. These writs [*49] (relating to the business of the subject) and the returns to them were, according to the simplicity of ancient times, originally kept in a hamper in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga; and thence hath arisen the distinction of the hanaper oflice, and petty bag office, which both belong to the common law court in chancery. But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any time: (d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans; (e) the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws, (f) but the power of both centred in one and the same magistrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cases, by the principles of equity. With us, too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice, according to the rules of both or either, as the case might chance to require; and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For, though equity is mentioned by Bracton (g) as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton (composed under the auspices and in the name of Edward I, and *treating particularly of courts and their several jurisdictions), is there a syllable to be found relating to the equitable jurisdiction of the court [*50] of chancery. It seems, therefore, probable that, when the courts of law, proceeding merely upon the ground of the king's original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person, assisted by his privy council (from whence, also, arose the jurisdiction of the court of requests, (h) which was virtually abolished by the statute 16 Car. I, c. 10); and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom, not only among our Saxon ancestors, before the institution of the aula regia, (i) but also after its dissolution, in the reign of King Edward I; (k) and, perhaps, during its continuance, in that of Henry II. (2) In these early times, the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to ancient prece (d) The council of conscience, instituted by John III, king of Portugal, to review the sentence of all inferior courts, and moderate them by equity (Mod. Un. Hist. xxii, 237), seems rather to have been a court of appeal. (e) Thus, too, the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe, of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. (Lord Kaims, histor. law tracts, I, 325, 330, princ. of equity, 44.) (f) Thus Cicero: "Jam illis promissis, non esse standum, quis non videt. que coactus quis metu quæ deceptus dolo promiserit? quæ quidem pleraque jure prætorio libérantur, nonnulla legibus." Óffc. l. i. g) 1. 2, c. 7. fol. 23. (h) The matters cognizable in this court. immediately before its dissolution, were "almost all suits, that by colour of equity, or supplication made to the prince, might be brought before him; but originally and properly all poor men's suits, which were made to his majesty by supplication; and upon which they were entitled to have right, without payment of any money for the same." (Smith's Commonwealth, b. 3. c. 7.) (i) Nemo ad regem appellet pro aliqua lite. nisi jus domi consequi non possit. Si jus nimis severum sit, alleviatio deinde quæratur apud regem. LL. Edg. c. 2. (*) Lambard. Ärcheion, 59 Joannes Sarisburiensis (who died A. D. 1182, 26 Hen. II), speaking of the chancellor's office in the verses prefixed to his polycraticon, has these lines: VOL. II.-5 Hic est, qui leges regni cancellat iniquas 33 dents, it is provided by statute, Westm. 2, 13 Edw. I, c. 24, that, "whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case, falling under the same right and requiring like remedy, no prece[*51] dent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law, (m) lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors." And this accounts for the very great variety of writs of trespass on the case to be met with in the register; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason and equity of his very case. (n) Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending, rather than narrowing, the remedial effects of the writ), might have effectually answered all the purposes of a court of equity; (0) except that of obtaining a discovery by the oath of the defendant. But when, about the end of the reign of King Edward III, uses of lands were introduced, (p) and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established; (7) and John Waltham, who was bishop of Salisbury and chancellor to King Richard II, by a strained interpretation of the above-mentioned statute of Westm. 2, devised the writ of subpana, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards, extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which, therefore, the chancellor himself is, by statutes 17 Ric. II, c. 6, directed to give damages to the party unjustly aggrieved. But as the clergy, so early as the reign of [*52] King Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro læsione fidei, as a spiritual offence against conscience, in case of non-payment of debts or any breach of civil contracts; (r) till checked by the constitutions of Clarendon, (s) which declared that, "placita de debitis, quæ fide interposita debentur, vel absque interpositione fidei, sint in justitia regis:" therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new acquired jurisdiction; especially as the spiritual courts continued (t) to grasp at the same authority as before in suits pro læsione fidei, so late as the fifteenth century, (u) till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls, (w) that, in the reigns of Henry IV and V, the commons were repeatedly urgent to have the writ of subpæna entirely suppressed, as being a novelty devised by the subtlety of Chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Henry IV, c. 23, whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in (m) A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm. 2. (n) Lamb. Archeion. 61. (0) This was the opinion of Fairfax, a very learned judge in the time of Edward the Fourth. "Le sub pana (says he) ne serroit my cy sorentement use come il est ore, si nous attendomus tiels actions sur les cases et mainteinomus le jurisdiction de ceo court, et d'auter courts." (Yearbook, 21 Edw. JV, 23. (py See book II, ch. 20. (q) Spelm. Gloss, 106. 1 Lev. 242. (8) 10 Hen. II, c. 15. Speed. 458. (r) Lord Lyttelt. Hen. II. b. 3, p. 361, note. (t) In 4 Hen. III, suits in court christian pro læsione fidei upon temporal contracts were adjudged to be contrary to law. (Fitzh. Abr. t. Prohibition. 15.) But in the statute or wit of circumspecte agatis. sup. posed by some to have issued 13 Edw. I, but more probably (3 Pryn. Rec. 336) 9 Edw. II, suits pro læsione fidei were allowed to the ecclesiastical courts; according to some ancient copies (Berthelet stat, antiq. London 1531, 90. b; 3 Pryn. Rec. 336), and the common English translation of that statute, though in Lynde. wode's copy (Prov. l. 2, t. 2), and in the Cotton MS. (Claud. D. 2), that clause is omitted. (u) Tear-book, 2 Hen IV. 10. 11 Hen. IV, 88. 33 Hen. VI, 29. 20 Edw. IV, 10. (w) Rot. Parl. 4 Hen. IV, Nos. 78 and 110. 3 Hen. V, No. 46, cited in Prynne's abr. of Cotton's records 410, 422, 424, 548. 4 Inst. 83. 1 Roll. Abr. 370, 371, 372. Edward IV's time, the process by bill and subpæna was become the daily practice of the court. (x) *But this did not extend very far: for in the ancient treatise, entitled [*53] diversite des courtes, (y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpæna in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to King Edward III, in 1372 and 1373, (2) to the promotion of Si Thomas Moore by King Henry VIII, in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers, (a) or churchmen, (b) according as the convenience of the times and the disposition of the prince required, till Sergeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to Lord Ellesmere, when chancellor. (c) In the time of Lord Ellesmere (A. D. 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the council, and even a master in chancery, for having incurred a præmunire, by questioning in a court of equity a judgment in the court of king's bench. obtained by gross fraud and imposition. (d) This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported so strongly in favour of the courts of [*54] equity, (e) that his majesty gave judgment in their behalf; but not contented with the irrefragable reasons and precedents produced by his counsel (for the chief justice was clearly in the wrong), he chose rather to decide the question by referring it to the plenitude of his royal prerogative. (f) Sir Edward Coke submitted to the decision, (g) and thereby made atonement for his error: but this struggle, together with the business of commendams (in which he acted a very noble part) (h) and his controlling the commissioners of sewers, (i) were the open and avowed causes, (k) first of his suspension and soon after of his removal, from his office. Lord Bacon, who succeeded Lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I, did little to improve upon his plan; and even after the (x) Rot. Parl. 14 Edw. IV. No. 33 (not 14 Edw. 111. as cited 1 Roll. Abr. 370, fc). (z) Spelm. Gloss 111. Dudg. chron. Ser. 50. (f) For that it appertaineth to our princely office only to judge over all judges, and to discern and detemine such differences as at any time may and shall arise between our several courts, touching their juris diction and the same to settle and determine. as we in our princely wisdom shall find to stand most with our honour," &c. (1 Chanc. Rep. append 26.) (g) See the entry in the council book, 26 July, 1616. (Biogr. B:it, 1390.) (h) In a cause of the bishop of Winchester, touching a commendam. King James, conceiving that the mat ter affected his prerogative, sent letters to the judges not to proceed in it till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law; but upon being brought before the king and council. they all retracted and promised obedience in every such case for the future, except Sir Edward Coke, who said "that when the case happened. he would do his duty." (Biogr. Brit. 1388.) (i) See that article in chap. 6. (k) See Lord Ellesmere's speech to Sir Henry Montague. the new chief justice, 15 Nov. 1616. (Moore's reports. 825.) Though Sir Edward might probably have retained his seat, if, during his suspension, he would have complimented Lord Villiers (the new favourite) with the disposal of the most lucrative office his court. (Biogr. Brit. 1391.) |